Berner v MacGregor

[2013] QDC 33

DISTRICT COURT OF QUEENSLAND

CITATION:

Berner v MacGregor [2013] QDC 33

PARTIES:

PHILIP RICHARD BERNER
(appellant)

AND

ANTHONY JOHN MACGREGOR
(respondent)

FILE NO/S:

2994/12

DIVISION:

Appellate

PROCEEDING:

Appeal (s 222 Justices Act 1886 (Qld))

ORIGINATING COURT:

Magistrates Court, Caboolture

DELIVERED ON:

1 March 2013

DELIVERED AT:

Brisbane

HEARING DATE:

15 February 2013

JUDGE:

Dorney QC DCJ

ORDER:

1.   The appeal is dismissed.

2.   No order is made as to costs.

CATCHWORDS:

Appeal – Guilty plea – Whether sole ground of appeal is “punishment” was “excessive”

Justices Act 1886 (Qld), ss 47(5), 222 and 223
Transport Operation (Road Use Management) Act 1995 (Qld), ss 78(1) and 78(3)
Penalties and Sentences Act 1992 (Qld), ss 9 and 13

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Appleton v The Commissioner of Police [2004] QDC 465
Constable S J Miers v Blewett [2013] QCA 23
Hili v The Queen (2010) 242 CLR 520
House v The King (1936) 55 CLR 499
Lacey v Attorney General (Qld) (2010) 242 CLR 573
Petrelli v Buchanan [2006] QDC 192
R v KAC [2010] QCA 39
Santillan v Queensland Police Force [2008] QDC 33
Smith v Ash [2011] 2 Qd R 175
Teelow v Commissioner of Police [2009] 2 Qd R 489
Wong v The Queen (2001) 207 CLR 584
Washband v Queensland Police Service [2009] QDC 243

COUNSEL:

D L Crews for the appellant

E L Kelso, Legal Officer, for the respondent

SOLICITORS:

Fowler Lawyers for the appellant

Office of Department of Public Prosecutions for the respondent

Introduction

1. The primary issue in this appeal is whether the sentence imposed with respect to the offence of disqualified driving, to which the appellant pleaded guilty, was manifestly excessive.

1. The appeal does raise for consideration the potential limitations inherent in s 222(2)(c) of the Justices Act 1886 (Qld) where, as here, a defendant pleads guilty. The matter arises because the appellant desires not only to assert the existence of manifest excessiveness but also to raise contended specific errors in the learned acting Magistrate’s decision at first instance.

Background

1. On 31 July 2012 the appellant appeared before the Caboolture Magistrates Court and pleaded guilty to 2 offences.  The first offence was one of disqualified driving, for which the maximum penalty was 60 penalty units or 18 months’ imprisonment.  The second offence was a breach of probation.

1. The appellant was sentenced to 9 months’ imprisonment, suspended for 2 years, after serving 2 months (for the disqualified driving offence) and was fined $250.00 (for the breach of probation), with that order to remain otherwise in force.  Additionally, the appellant’s driver license was suspended for 3 years.  Appeal bail was granted on 1 August 2012.

1. The first offence and the breach both occurred on 14 April 2012, at Caboolture.  The appellant had been earlier disqualified from driving for 15 months (for the period from 25 January 2012 until 24 April 2013). As revealed to the Magistrates Court, further traffic history involved 2 earlier offences of disqualified driving,…